We previously wrote about Walter “Bib” Jones back in 2011. Bib’s been an auctioneer for 47 years, selling mostly livestock, farm equipment and real property.
Our previous article noted that Bib could offer property absolute, and if no bid was made within a reasonable time, Bib could withdraw the property from the auction.
He did so as he offered a weathered antique anvil and block. That original article is here: http://mikebrandlyauctioneer.wordpress.com/2011/06/22/ucc-2-328-reasonable-time/
Today, we analyze another question.
Say Bib offers this anvil and block at absolute auction, and no bid comes in within a reasonable time. At that moment (however long a reasonable time is,) Bib has the right to withdraw the property. If Bib accepts a bid after no bid is offered within a reasonable time prior, can he still withdraw the property subsequently?
Or, is the right of withdrawal extinguished by a bid even if it comes in after a reasonable time of no bids being made? The UCC 2-328 is hardly silent on this issue, but may not quite answer our question. The UCC 2-328 (3) says in part:
In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time.
So if no bid is made within a reasonable time, the property can be withdrawn … no matter if there is a bid or not subsequent to the right of withdrawal reappearing? The UCC 2-328 doesn’t clarify; a clue might be held in the Uniform Sales Act of 1906, where no such withdrawal is permitted at all in an absolute auction?
Nevertheless, if this is the case, Bib could take that $5.00 bid after the reasonable time period expired, and then accept $10, $15, $20, $25, $50, $75, $100 … and still withdraw the anvil and block in an absolute auction? Such would make this auction more resemble a with reserve auction, where the right of withdrawal is sustained up until the fall of the hammer.
Most auctioneers consider any bid accepted at an absolute auction to extinguish the right of withdrawal. In fact, the UCC 2-328 indicates it is the mere offering which extinguishes the right of withdrawal even if the bid is not accepted. Yet, the UCC 2-328 clearly allows withdrawal if no such offer is made within a reasonable time.
Said another way, our question today is — for an absolute auction — since an offer made after the reasonable time can be rejected (by withdrawing the property,) can that same offer be accepted and retain the right of withdrawal?
I interpret the UCC 2-328 to suggest that if a bid is accepted, then the property cannot be withdrawn, but I could almost just as well support the counter argument.
Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Auctions and Goodwill Columbus Car Auction. He serves as Adjunct Faculty at Columbus State Community College, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.
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